Philip Brouillard (2004)

The Committee has determined that the record supports the following factual findings

proved, but that the charged violation of 1.3(a) was proved. The Hearing Panel determined that the charge violations of 1.1(c)(3) and 3.2 were not that Stipulation, the hearings Committee proceeded with a hearing on the other charges. Brouillard had violated Rules 1.4(a), 1.4(b), 1.4(c), and 8.4(a). Following the entry of Stipulation as to a number of factual allegations and as to rulings of law that Attorney Attorney Brouillard and Attorney McCafferty, on behalf of the Committee, entered into a 1.3(a), 1.4(a), 1.4(b), 1.4(c), 3.2, and 8.4(a). On August 27,2004, the day of the hearing, In this matter Attorney Brouillard was charged with violations ofRul~s 1.I(c)(3),

hearing, the Committee makes factual findings and rulings as detailed below. Hearing Panel Report dated October 26,2004, and a transcript of the August 27,2004, Exhibit Nos. 1-21, inclusive, a Stipulation dated August 27,2004 (the"Stipulation"), a Defenses of Philjp A. Brouillard and supplemental response thereto, jointly submitted record, including the Notice of Charges dated July 2, 2004, an Answer and Affirmative The Committee thoroughly reviewed the record in this matter. Having reviewed the

and did not vote. from the matter. Members Toni Gray and James Martin were absent from the discussion proceeded without hearing oral argument. No members of the Committee were recused argument in this matter, the Professional Conduct Committee (the "Committee") McCafferty and Philpot by letter of October 27, 2004, that neither office requested oral Respondent, Attorney Philip A. Brouillard. Having been advised by Attorneys Discipline Office, and Edward D. Philpot, Jr., Esq., appeared on behalf of the In this matter Landya B. McCafferty, Disciplinary Counsel, appeared for the Attorney

Brouillard, Philip A. advs. S. Jonathan Lowe #OO-N-149

Alan J. Cronheim * non attorney member Thomas P. Connair Stephen B. Stepanek* David N. Cole David N. Page* Toni M. Gray, * Vice Chair 603-224-5828 + Fax 228-9511 Richard B. McNamara Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 James R. Martin Margaret H. Nelson, Chair 4 Park Street, Suite 304 Morgan A. Hollis

without either Mr. Dubois' oversight or Mr. Lowe's authorization. Mr. Lowe's property and allowed her to enter and occupy the property 21's brokers, Roland ("Pete") R. Dubois, Sr. had given Ms. Reese a key to property." In that letter, Mr. Lowe explained his belief that one of Century loss. of rent which occur as the result of Ms. Reese's occupancy of the personally responsible for the actions of [its] broker and any damage or placing it on notice that he was holding Century 21 "professionally and Lowe's letters. On that date, Mr. Lowe drafted a letter to Century 21 6. As of September 28, 1998, Ms. Reese had not responded to Mr.

her to sign and return the leases. Lowe again forwarded copies of the leases and reiterated his request for 5. Subsequently, in a letter to Ms. Reese dated September 9, 1998, Mr.

see a copy of this letter until after this complaint was filed. to him. Ms. Reese did not respond to that letter. Mr. Brouillard did not 1998, in which he included two copies of a lease for her to sign and return 4. To that end, Mr. Lowe sent a letter to Ms. Reese dated August 14,

. a tenant. forward a lease agreement to Ms. Reese in order to formalize her status as have an interest in buying the property. Century 21 advised Mr. Lowe to occupying the property. Mr. Lowe further learned that Ms. Reese might 3. Mr. Lowe learned from Century 21 that a Susan Reese was

mqUlre. using the electricity on the property. Mr. Lowe telephoned Century 21 to electric bill for the property, which indicated to him that someone was 2. At some point in the summer of 1998, Mr. Lowe received an

Century 21 Twin Rivers Realty (hereinafter"Century 21"). to sell the property. To accomplish this goal, he used the services of Franklin, New Hampshire (hereinafter"the property"). Mr. Lowe wanted 1. Mr. Lowe owned property located at 256 Lake Shore Drive in

Background: Mr. Lowe's dealings with Century 21 dated October 22,2004. That Stipulation states: of and based on the Stipulation, which was adopted by the Hearing Panel in its report of the Hearing Panel by clear and convincing evidence. These findings are a reiteration p. 3 - 3 -

enter the property and examine it. evicted from the property, and Mr. Brouillard and Mr. Lowe were able to office. Through Mr. Brouillard's efforts, on May 28, 1999, Ms. Reese was Brouillard requested that he sign these and return them to Mr. Brouillard's Demand for Rent and Notice to Quit regarding Ms. Reese, and Mr. 12. On February 19, 1999, Mr. Brouillard forwarded to Mr. Lowe a

suit The breakdown in communication and Mr. Brouillard's failure to file

lawsuit against Century 21 and the two brokers. Service on July 2, 1998. Thereafter, he wanted Mr. Brouillard to file a would reveal that Ms. Reese made her first request for electricity to Public the electric company. He informed Mr. Brouillard that the transcript Company of New Hampshire of all conversations between Ms. Reese and He instructed Mr. Brouillard to obtain a transcript from Public Service "your initial efforts to go" toward forcing Century 21 to evict Ms. Reese. 11. Mr. Lowe indicated in this December 10 letter that he wanted

sometime in late June or early July of 1998. had been residing in the premises without Mr. Lowe's authorization since responsible for providing a key to his property to a tenant, Ms. Reese, who 10. Mr. Lowe believed that Century 21 and two of its brokers were

receive a copy of the August 14, 1998 letter at this time. correspondence with Century 21 and Ms. Reese. Mr. Brouillard did not $500 check for Mr. Brouillard's retainer, along with copies of his prior Rivers Realty and two of its brokers. With that letter, Mr. Lowe includeda was retaining Mr. Brouillard to bring a lawsuit against Century 21 Twin 9. In a letter dated December 10, 1998, Mr. Lowe confirmed that he

against Century 21. a lawsuit against Century 21. Mr. Lowe hired Mr. Brouillard to bring suit 8. At some point in early December 1998, Mr. Lowe decided to pursue

received no other payment from Ms. Reese. a bank check from her for one month's rent. Thereafter, Mr. Lowe agreements from Ms. Reese, and on October 20, 1998, Mr. Lowe received 7. On September 30, 1998, Mr. Lowe received the signed lease p. 4 - 4 -

economic hardships to which I plan to recover same. responsible for their actions. And, it caused me severe would like to at least have it on record that they are It is not that I am looking for an immediate settlement, but I

approximately $5,000.00. the suit. To replace the stove today it would cost damaged and should be added to the list of claims as part of discussed, I have been told the wood stove has been severely Please note, in addition to the issues we have already the suit was imminent. I would like to see it moved forward. phone conversations Mr. Brouillard have stated that filing of evicted, the property has been sold, and upon numerous It has now been approximately 8 months since she has been

evicted. advice and waited to file suit until after Ms. Reese was on the part of the above mentioned parties. Yet, I took your witness and proved beyond a shadow of a doubt negligence that time Mr. Brouillard could have called Miss Reese as a Franklin, New Hampshire. I believe had we brought suit at still occupied the property at 256 Lake Shore Drive in Mr. Doug Embree and Mr. Peter Dubois, while Miss Reese desire to bring suit against Century 21 Twin Rivers Realty, It is with great concern that I am now writing. I expressed a

Brouillard: 16. On February 16,2000, Mr. Lowe wrote the following letter to Mr.

15. On or about January 6,2000, Mr. Lowe sold the property.

Mr. Brouillard would be filing it soon. was in the process of preparing the complaint against Century 21 and that spoke with Mr. Lowe on the telephone and assured him that Mr. Brouillard spoke with Mr. Lowe on the telephone and assured him that Mr. Brouillard 14. On September 8 and, again on December 6, 1999, Mr. Brouillard

21, and Mr. Brouillard continued to agree to represent him in that pursuit. 13. Mr. Lowe was still interested in pursuing a lawsuit against Century p. 5 - 5 -

refresh your memory. On December 10, 1998, I sent you a In response to your letter dated June 26, 2000, let me

wrote Mr. Brouillard the following letter: 21. In response to Mr. Brouillard's abrupt withdrawal, on August 4,2000, Mr. Lowe

reasons which are unrelated to you. I have determined that I cannot take this case for personal

which is the balance of your retainer. evidence, along with a check in the amount of $327.85, Enclosed herewith please find all original documentary

20. In a letter to Mr. Lowe dated June 26, 2000, Mr. Brouillard wrote the following:

Monday." again assured him that Mr. Brouillard would"get to it" and"fax [it] sometime today or 19. On June 9, 2000, Mr. Brouillard spoke with Mr. Lowe on the telephone and

I look forward to hearing from Mr. Brouillard.

Stephen Dubois is residing at this address. (telephone (603) 524-8262). You may also discover that a address is 73 Baldwin Street, Laconia, New Hampshire In the meantime, I believe Mr. Roland Dubois's home

the case outline. and Roland Dubois. I continue to look forward to receiving to receive a fax outlining my case against Twin Rivers Realty As per our conversation on Tuesday, May 30th, I expected

18. On June 1,2000, Mr. Lowe telefaxed Mr. Brouillard the following letter:

so that he could determine Mr. Lowe's total damages. filed the lawsuit because Mr. Brouillard wanted to wait until after the property was sold Century 21 and it would be filed forthwith. Mr. Brouillard explained that he had not yet again assured him that Mr. Brouillard had been working on the complaint against 17. On April 7, 2000, Mr. Brouillard spoke with Mr. Lowe on the telephone and

Please let me know how we may proceed. p. 6 6

convincing evidence that said rules have been violated, as explicated below. and 8.4(a) of the Rules of Professional Conduct, the Committee finds clear and parties having stipulated that Attorney Brouillard violated Rules 1.4(a), 1.4(b), 1.4(c), The above-listed facts having been found by clear and convincing evidence and the

them to review your lack of professionalism. Hampshire Professional Conduct Committee, and expect Finally, I plan to pursue your conduct with the New

a suit against Century 21 Twin Rivers Realty. represented they were all but completed with respect to filing receive a copy of all your notes and drafts, as you had accounting of all monies spent. In addition, I expect to Rivers Realty. Therefore, I expect to receive a full respect to all aspects of my case against Century 21 Twin consistently misrepresented yourself and your intent with subverted the strength of my case. You have continually and Your actions have directly, and, I believe, intentionally

before your acceptance of my case. company." This should have been thought through long appear as to have a "personal vendetta against that during one of our last conversations, reflected a desire to not Realty was imminent. Your "personal reasons," as expressed you represented a filing against Century 21 Twin Rivers initiation of that eviction, and your June 2 p. 6 6th letter, wherein proceed on her eviction. There were several times during the "the squatter Miss Susan Reese," did you convince me to determination to establish damages through the eviction of Then, against my wishes, and only through your sheer

Rivers Realty, its owner and an individual broker. and won judgment and damages against Century 21 Twin case and proudly pointed out that you had previously sued accepted a retainer. As I recall, you were happy to accept my letter outlining my case which you agreed to represent and p. 7 7

resented than procrastination." The Panel found, and the Committee agrees, that the As the comments to the Rule note,"perhaps no professional shortcoming is more widely to act with appropriate diligence and ultimately harmed the attorney-client relationship. with his representation and aspects of the lease issue to the client demonstrated a failure Committee agrees, that the Respondent's repeated failure to convey problems associated In this instance, the Panel found, by clear and convincing evidence, and the

client relationship. diligent if, inter alia, matters are"carried out with no avoidable harm to the attomey­ representing a client." Rule 1.3(b) provides that performance by a lawyer is prompt and Rule 1.3(a) requires that a lawyer act"with reasonable promptness and diligence in

against Century 21, was proved. Rule 1.3(a), relating to the Respondent's failure to act diligently to commence litigation The Hearing Panel determined that the charged violation of Professional Conduct

Rule 1.3(a): Diligence (Contested Charge)

Prof. Conduct 8.4(a). above rules, there is necessarily clear and convincing evidence of a violation ofN.H.R. Because there exists clear and convincing evidence that Mr. Brouillard violated the

Rule 8.4(a): Omnibus Rule (Stipulated Ruling)

Conduct l.4(a)-( c). that Mr. Brouillard's failure in this regard constitutes a separate violation ofN.H.R. Prof. lawsuit against Century 21 on his behalf. The evidence is clear and convincing evidence Brouillard abruptly decided, after the passage of approximately 18 months, not to file a Additionally, Mr. Brouillard failed to explain to Mr. Lowe the reason(s) why Mr.

constitutes a violation ofN.H.R. Prof. Conduct 1.4(a), 1.4(b), and l.4(c). The evidence is clear and convincing evidence that Mr. Brouillard's failure in this regard case such that Mr. Lowe could make informed decisions regarding the representation. Brouillard also neglected his duty to communicate the legal and practical aspects of the Mr. Lowe"reasonably informed" regarding the status of his lawsuit. In so doing, Mr. Brouillard was in the process of preparing such a lawsuit, Mr. Brouillard did not keep By failing to file suit against Century 21 while repeatedly assuring Mr. Lowe that Mr.

(Stipulated Ruling) Rule l.4(a), 1.4(b), and 1.4(c): Client Communications - 8 imposing sanctions. Standards for Imposing Lawyer Sanctions, the Court has considered those standards when 1 Although the New Hampshire Supreme Court has not formally adopted the ABA

b. Rules l.4(a), l.4(b), l.4(c). The Hearing Panel recommended a sanction of

now calls a"Reprimand". finding would result in an admonition under the ABA standards, a sanction our Court view of the fact that there was little or no injury or potential injury to the client. This Attorney Discipline Office's Hearings Committee Manual, the appropriate sanction in Reprimand, as defined in our Supreme Court Rule and clarified in New Hampshire The Committee agrees with the Hearing Panel and finds the sanction of

potential injury to a client (emphasis added)." with reasonable diligence in representing a client, and causes little or no injury or provides that an admonition is appropriate ''when a lawyer is negligent and does not act to a client (emphasis added);" and (2) that the ABA standard for an"Admonition" with reasonable diligence in representing a client, and causes injury or potential injury provides that a Reprimand is appropriate ''when a lawyer is negligent and does not act the ABA standard for a"Reprimand" (a sanction listed and defined in Rule 37A(I)(c)) "diligence," the ABA equivalent to Rule 1.3), following which the Panel noted: (1) that after reviewing the ABA Standards for Imposing Lawyer Sanctions I § 4.4 (relating to Reprimand for his violation of Rule l.3(a). The Hearing Panel made its recommendation a. The Hearing Panel recommended that the Respondent receive the sanction of

1.4(a), 1.4(b), 1.4(c), and Rule 8.4(a): appropriate discipline in this matter is a Reprimand for the violations of Rule 1.3(a), Having made the above findings and rulings, the Committee concludes that the

communication. The Committee adopts these findings and observations. earnestly apologized for his failure to return calls and meet the client's need for noted that the Respondent appeared genuinely remorseful for the course of conduct, and client or his interests, but instead harmed the attorney-client relationship. The Panel also determined that this procrastination did not result in any obvious or evident injury to the undermined his confidence in Attorney Brouillard. At the same time, however, the Panel telephone calls), constituted a course of conduct that frustrated the client and profoundly procrastination in this case (manifested in the form of a repeated failure to return p. 9 - 9 -

G:\DOCS\Hearings Committee\Brouillard OO-N-149\Brouillard OO-N-149 draft Reprimand.wpd (12/13/04) Edward D. Philpot, Jr., Esq. cc: Disciplinary Counsel

with the Rules of the New Hampshire Supreme Court. Attorney Brouillard shall be entitled to appeal the findings or sanction in accordance

1.4(c), and 8.4(a). violation of the New Hampshire Rules of Professional Conduct: Rules 1.3, 1.4(a), 1.4(b), appropriate for the Committee to impose a Reprimand upon Attorney Brouillard for his (III)(d)(l) the Hearing Panel recommended, and the Committee agrees, that it is In summary, in accordance with New Hampshire Supreme Court Rule 37(A)

due to the violation of Rule of Professional Conduct 8.4(a). c. Rule 8.4(a). The Panel does not recommend any additional or other sanction

Committee Manual, the appropriate sanction. Court Rule and clarified in New Hampshire Attorney Discipline Office's Hearings Accordingly, the Committee finds the sanction of Reprimand, as defined in our Supreme the lawyer's actions on his behalf at appropriate times and in an appropriate manner. injury arising from the Respondent's failure to keep the client reasonably informed about this matter of actual deceit or intention to deceive the client, nor any injury or potential The Hearing Panel found, and the Committee agrees, that there was no evidence in

client." accurate or complete information, and causes little or no actual or potential injury to the lawyer engages in an isolated instance of negligence in failingto provide a client with "lack of candor"). ABA Standard § 4.64 notes that Admonition is appropriate"when a again looked to the ABA Standards for Imposing Lawyer Sanctions, § 4.6 (relating to "Reprimand" for the Respondent's violation of Rules 1.4(a), 1.4(b) and 1.4(c). The Panel